Gaius Whiffin discussing workers compensation claims on 2GB – 1 December 2020

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DK – Deborah Knight/GW – Gaius Whiffin /C1,2,3, etc – Callers 

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Read the transcription below:

DK      It is Tuesday, time for some free legal advice, 131 873, if you’ve got a question to do with worker’s compensation, you might have had an issue at work, want to know if you should be compensated or maybe you want to know what the first steps are in making a claim. We’ll, you’re in the right place 131 873 is the open line number, we have a $100 voucher from Westfield to give away for the best question and on the line to explain it all is Gaius Whiffin from Turner Freeman Lawyers, Gaius good to talk, thanks for joining us.

GW     Good afternoon, Deb.

DK      Alright, let’s break it down, worker’s compensation, we hear a lot about it what sort of things does it actually cover?

GW     Well it basically covers time off work, so if you need time off work because you’re injured at work, you can get payment of your weekly wage, not at the pre-injury rate, but a rate barely close to that for a period of time, secondly it covers medical costs and thirdly depending upon the level of your injury, you may be entitled to a lump sum for the level of impairment and fourthly, you also may be entitled to make a negligence claim against your employer, again depending upon the severity of the injury.

DK      And does it cover just physical injuries or also mental injuries, because we know that mental health, mental injuries, they’re a big focus on that at the moment and mental fitness too.

GW     Yes certainly Deb, no it does cover, covers all types of injuries, physical and mental, psychological injuries, there are some…in terms of getting lump sum compensation rather than the weekly wage for psychological injuries there is a higher threshold, which seems unfair but that’s the way the Act has been drafted, but otherwise if you’re off work because of a stress related condition caused by work then you’re entitled to be paid the compensation per week for your lost wages.

DK      Alright, Linda’s called in on that topic as well, hi Linda, what did you want to know from Gaius today?

Caller No: 1    Linda

C1       Yeah hi, I’m currently on workers comp for a psychological injury and I’ve been approved by my insurer to attend a holistic approach facility, which covers not just an inpatient psychiatric for medication but for everything, post-traumatic stress, anxiety and the food, everything for your healing of the mind, body, whatever, but the only one that SIRA has approval of is in Byron Bay and it’s $35,000 for one week.

DK      Wow.

C1       And of course they’re not going to approve that and I’ve done my own searching and ewe just can’t find any that are SIRA approved in any State in Australia, let alone SIRA approved without the use of medication and that cover everything holistically.

DK      We’ll see if Gaius can shed any light on this for us.

GW     Yeah, look this is a problem, it’s not just with these sorts of approaches, it’s with a lot of other treatments that isn’t specifically approved by SIRA…

DK      So what is SIRA?

GW     It’s the State Insurance Regulatory Authority, so it’s the regulatory authority responsible for the worker’s compensation system and it accredits treatment providers and insurers and so forth so it regulates the whole system, it’s a government body, so yes look it is a problem, it is something that perhaps can be raised directly with SIRA rather than with the worker’s compensation insurer because I would imagine that there are alternates to this $35,000 or if there aren’t then there needs to be, if this is the only potential treatment that you can have, then there needs to be a claim made for that treatment, if SIRA and the insurer are not going to help you out otherwise, then I’d be claiming for that treatment and if necessary taking the matter before the Workers Compensation Commission.

DK      Yeah, well there’s good advice for you Linda, and she’s right, there’s got to be more than one facility to provide that help, because we know it’s such a big issue.

GW     Well yes there would be, I don’t know off the top of my head but if SIRA only approved one, then it’s time they looked at seeing if there are others to be approved. At the end of the day it saves everyone money if there are more reasonable options to provide the same sort of treatment result at the end of the day.

DK      Absolutely, you might have a query for Gaius Whiffin from Turner Freeman Lawyers 131 873, free legal advice, we do it every Tuesday when we talk legal matters and worker’s compensation is our focus today, 131 873. With ongoing injuries Gaius, or things you might notice later in life after a particular incident, you don’t have initial affects from it but it might impact you later in life, do you have rights to claim then.

GW     Yes you do, this happens a lot in terms of what we call occupational diseases, so for example skin cancer, when someone’s been working outside their entire life, often skin cancers take 40 years to develop, so it can happen in relation to say back injuries, if someone has been doing a fairly physical job all through their life but it really takes effect a few years or after they retire, so you’re certainly entitled to make a claim indeed, the way the Act works, the Worker’s Compensation Act works is that it actually deems your injury to occur on the date that you make the claim.

DK      Is that right? So, it doesn’t have that time limitation?

GW     No, it doesn’t have that time limitation, so you can certainly make those claims, there may be some limitations in relation to persons that have been injured at work, made a claim at the time, had some time off work, had some medical costs and then want to reclaim at a later stage, there are some recent rules and regulations applying to those sorts of claims, but it’s wise to always get legal advice before, if an insurer says no you can’t claim anymore because you’re out of time, it’s always wise to get a legal advice on those matters.

DK      For something like melanoma though for skin cancer as you say, I mean it’s hard to prove, I mean if you grow up in somewhere like Queensland or if you grow up in an area where you are exposed to the sun a lot in general and how do you make that direct claim that it’s linked to your workplace?

GW     Well, your employment has to be the main contributing factor, it doesn’t have to be the only contributing factor, it has to be the main contributing factor. Now it’s a matter of going through the evidence, what sort of sun exposure you received you know while you were growing up, what sun exposure you might have received going to the beach, what sun exposure you received at work. If you’re working outdoors you know 40 hours a week and you spend you know, a few hours on the weekend in the sun in the beach or playing golf or whatever, then you’ve got 40 hours at work versus 4 hours recreational then you’re generally going to find it’s the main contributing factor, but it all depends upon the circumstances obviously. You might have someone that only worked outside 20 hours a week, and used to spend all their weekend on the beach and those are difficult situations, I mean it depends upon the facts.

DK      Yeah, of course. 131 873, we’ll get to your calls in just a moment, talking to Gaius Whiffin from Turner Freeman Lawyers for Tuesday legal matters, 131 873. 11 minutes to 2, to 1 in Queensland, let’s get to your calls in legal matters, Gaius Whiffin is with us from Turner Freeman Lawyers to answer your queries on worker’s compensation, Cole is first up, hi Cole, what did you want to know today?

Caller No: 2    Cole

C2       Oh hi, how are you Deb?

DK      Yeah good.

C2       What I’m ringing about, my son was injured at work, he had a friend or a relative of the owner walk into the workshop and kick the door open and the door knob hit him in the elbow and done some major damage. Anyway, the company refused to believe that the injury was caused by them, he applied for workers comp and they sort of carried on, his doctor referred him to a surgeon who had to operate on it and he ended up with about a 8% disability, when he applied back through worker’s comp, and said look I’ve got this disability they sent him to a doctor, not an orthopaedic surgeon, and he said oh no, you’ve only got a 1.5% disability and he got nothing out of it.

DK      We’ll see if Gaius has got any options for you, Gaius?

GW     So they paid your son for his time off work and medical costs?

C2       Didn’t pay his medical costs, no. Sorry, he ended up getting the money, not from his company but I think he got that through worker’s comp.

GW     Yeah to make a claim for a lump sum you have to have over 10% whole person impairment. So if your son only had 8, then he’s not going to qualify.

DK      That’s frustrating tough isn’t it, with all those percentages you know?

GW     Especially with operations and so forth, this was one of the laws brought in in 2012, prior to that there was no…you know 1% impairment entitled you to a certain lump sum, these days it has to be over 10.

DK      We might get your details stay on the line Cole, we’ll put you in touch with Gaius because he might be able to investigate that further for you. Judy, what did you want to know today?

Caller No: 3    Judy

C3       Oh just a curious question about worker’s compensation but my husband is disabled, I am his carer, 7, nearly 8 weeks ago I was gardening and I rolled my ankle and I had to spend nearly 7 weeks in a moon boot, how come, I’m his carer and there’s no compensation for me apart from the pension which people will probably say well that’s your compensation.

DK      Yeah, but no you’re right, in terms of compensation for workplace injury, Gaius?

GW     Look, um you have to meet the definition of worker under Workers Compensation Act to be entitled to worker’s compensation, it’s a specific Act and the specific definition.

DK      Even though you’re a carer and that is your fulltime job.

GW     Well it is a fulltime job and I agree there’s a lot of anomalies in terms of who actually can’t meet the definition that’s in the Act, but especially in these days when it’s in effect one insurer, iCare that deals with all insurance, so it’s not as if you there’s a huge premium issue involved, so in those circumstances yes I can see the argument but until they amend the Act that’s unfortunately there’s no rights there.

DK      Yeah frustrating though, Judy, thank you for the call. Linda what about you what did you want to know today.

Caller No: 4    Linda

C4       Oh hi, ten months ago I sustained an injury where I actually am a community carer, I actually slipped, I grabbed hold of the rail and I wrenched my whole arm and I’ve got nerve damage, wrist damage, elbow damage, shoulder damage and it’s ten months on now. I’m in a lot of pain, I’m still working but I want to know is, why is it as I’m working my worker’s compensation money goes down?

DK      Hmm, okay, Gaius?

GW     Well, it shouldn’t, if you’re working and you’re working sort of reduced hours are you?

C4       Yes I’m on reduced hours and I’m also on reduced ability.

GW     Well in fact the more you can increase your hours the more your worker’s compensation payments should actually increase after the first 13 weeks of being off…since the injury.

DK      Yeah, cause it’s got to make up that shortfall.

GW     So that sounds as if there’s an issue there, an issue that needs to be looked into, so I’d suggest that you get some advice.

DK      Alright Linda, maybe stay on the line too and we’ll get you in touch directly with Gaius to see if we can sort that out. And John’s just got a query saying he’s on Workcover and they’re going to cut him off shortly because he declined an operation, what’s his option there?

GW     Take them on is basically the option, I mean it’s up to you whether you have an operation or not, it can be recommended by all the doctors in the world but if you don’t, you know an operation is an invasive procedure, if you don’t want to have that operation then that’s up to you, they say they’re going to stop your payments because of it, then you need to challenge that before the Workers Compensation Commission.

DK      Love it, take them on, Gaius Whiffin, that’s his ruling. Good on you Gaius. thanks so much for joining us.

GW     Okay, all the best Deb.

DK      Gaius Whiffin there, if you want help from him or any other lawyers at Turner Freeman, they’re very good at what they do, turnerfreeman.com.au, 13 43 63 and Linda we’ll send you out that $100 Westfield voucher, your question about mental health was a good one. 131 873 you’re on afternoons with Deborah Knight.